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Case 1:13-cr-10200-GAO Document 828 Filed 12/29/14 Page 1 of 13

UNITED STATES DISTRICT COURT


DISTRICT OF MASSACHUSETTS
UNITED STATES OF AMERICA
v.
DZHOKHAR TSARNAEV

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CRIMINAL NO. 13-10200-GAO

REPLY TO GOVERNMENTS OPPOSITION TO


SECOND MOTION TO CONTINUE TRIAL DATE
Defendant, Dzhokhar Tsarnaev, by and through counsel, respectfully submits this
reply to the governments Opposition [DE 824] to his Second Motion to Continue Trial
Date [DE 804]. The governments arguments are largely comprised of generalizations
that cannot withstand scrutiny and other statements that are simply wrong.
For example, the government contends that the defense could hardly have been
surprised by the size of the witness list because of its refusal to enter any stipulations.
Opp. at 2. The governments claim that the defense has refused to make any stipulations
is false. We have advised the government repeatedly that we are willing to consider
stipulations to streamline the trial presentations and to avoid unnecessary testimony (e.g.,
from records custodians, from those who would do nothing more than confirm links in
the chain of custody of numerous items, etc.) about which there likely is no controversy.
To date, however, the government has not provided even a single proposed stipulation to
the defense.
The government also has continued to resist defense requests for production of
reports and other contemporaneous documentation concerning crime scene evidence
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collection as well as the seizure, handling, and forensic processing of electronic devices
materials that would permit the defense to meet its legal responsibility to verify many
of the types of stipulations the government could be expected, eventually, to propose.
Meanwhile, the press has spread the governments false claim about stipulations,
which is being used to malign the defense request for continuance as some kind of
illegitimate tactic and further prejudice the public and prospective members of the jury
pool against the defense. See, e.g., Bob McGovern, Tsarnaev Team Tactics Become
Overbearing, THE BOSTON HERALD (Dec. 26, 2014)1 (The biggest federal case in
Boston since the Whitey Bulger trial is certainly complicated thanks in no small part
to Tsarnaevs defense teams foot-dragging. They wont stipulate to any evidence,
according to prosecutors. So a conga line of witnesses will have to march into court as
the government attempts to prove even the smallest piece of evidence is what they say it
is.).
Contrary to the assertions in the Herald article, which flow directly from the
content and tenor of the governments opposition, this is not a situation where the defense
keeps asking for more as a stall tactic while complaining about a number of
uncomfortable situations it has put itself in. Id. It was the government that elected to
pursue the death penalty in this case. If the government remains unwilling to relent in
seeking death and the case therefore must be tried, the defense is asking for nothing more

This article is available at


<https://www.bostonherald.com/news_opinion/local_coverage/2014/12/mcgovern_tsarna
ev_team_tactics_become_overbearing>.
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than a trial that is fair. The minimal standards for constitutionally competent death
penalty representation are demanding:
The defense team must conduct an ongoing, exhaustive and independent
investigation of every aspect of the clients character, history, record and
any circumstances of the offense, or other factors, which may provide a
basis for a sentence less than death. The investigation into a clients life
history must survey a broad set of sources and includes, but is not limited
to: medical history; complete prenatal, pediatric and adult health
information; exposure to harmful substances in utero and in the
environment; substance abuse history; mental health history; history of
maltreatment and neglect; trauma history; educational history; employment
and training history; military experience; multi-generational family history,
genetic disorders and vulnerabilities, as well as multi-generational patterns
of behavior; prior adult and juvenile correctional experience; religious,
gender, sexual orientation, ethnic, racial, cultural and community
influences; socio-economic, historical, and political factors.
American Bar Association, Supplementary Guidelines for the Mitigation Function of
Defense Teams in Death Penalty Cases (2008).
Only adequate preparation makes a fair trial possible. But we face a situation
where Mr. Tsaranev is being afforded substantially less time to prepare than the vast
majority of defendants in federal capital cases; less time, even, than Gary Sampsons
defense will have to prepare for a sentencing-only re-trial in this district of a case already
tried once over a decade ago.
While the government may be loath to admit it, both sides would obviously benefit
from a continuance, which also would serve the broader interests of justice. Affording
the parties additional time to prepare their respective presentations in an organized and
orderly fashion would facilitate efforts to reach agreement about issues that need not be

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litigated, narrow and focus contested issues that the Court must decide, and streamline a
complex and lengthy trial.
Volume and State of Discovery.
Putting aside for a moment the governments unsupported generalizations about
the scope of its affirmative disclosure obligations versus its voluntary accommodation
of defense requests over the entire history of the case, the fact remains that on December
17 and 18, the government produced 19,448 Bates-numbered pages (and some other
collected items such as spreadsheets and audio files that also were assigned individual
Bates numbers)2 of what it characterized as witness-related materials, that is, borne of the
governments obligation to produce so-called Jencks (witnesses prior statements) and
Giglio (witness impeachment) materials. The volume of this disclosure, alone,
requires a continuance.
Contrary to the governments argument, Opp. at 4, the nature and volume of the
December 17-18 productions also brings the governments disclosures here squarely
within the scope of the Massachusetts Lawyers Weekly Editorial Boards criticism of
2

Assuming the government is correct that the 3.0 gigabyte Bates-numbered production
on December 18 wholly duplicated part of the 166.87 gigabyte December 15 unnumbered production, that still leaves 163.87 gigabytes of additional material from the
December 15 production that the defense must digest. Even crediting the governments
assertion that the omission of indices for the December 17 and 18 productions was
inadvertent, Opp. at 3, it still has not provided an index of the December 15 production,
which would facilitate identification of any duplicate materials re-produced on December
18. The December 15-18 disclosures also fit a pattern of earlier productions. For some,
indices were never provided, most notably the 90-gigabyte, 100,000-plus file dump of
expert-related materials in July 2014. For others, indices were only provided days later
after repeated defense requests (e.g., the index to a government production on September
26 was not forthcoming until October 6). Indices provided contemporaneously with
government productions have been the rare exception rather than the rule.
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government tactics in the OBrien case, except that here the volume of materials withheld
until 21days before trial is more than double the volume at issue in OBrien, and here the
government is seeking the death penalty. See Editorial, U.S. Attorney Should Stop
Gotcha Litigation Tactics, MASSACHUSETTS LAWYERS WEEKLY, Jan. 16, 2014.
The core question that the Lawyers Weekly Editors asked is one that has vexed the
defense from the outset of this case: why would the government hew to a rigid, narrow,
and minimalist view of its affirmative disclosure obligations when a defendants liberty
and here, his life as well as the publics perception of the systems fairness, [are]
on the line? Id.; contrast, e.g., United States v. McVeigh, 954 F. Supp. 141 (D. Colo.
1997) (describing governments open file approach to discovery in that case while
requiring the government to be even more proactive in its disclosures).
The government has made abundantly clear that it holds a very narrow conception
of what is relevant: the defendants specific alleged role in the charged offenses and
indicia of his own alleged radicalization viewed solely through the lens of his own
computer. But the government has charged conspiracy offenses, which necessarily
implicate the alleged role of Tamerlan Tsarnaev as well. The brothers alleged
radicalization is a more complex story over a longer period of time that can only be
understood by painstaking analysis of activity across multiple electronic devices that the
government has seized.3 Moreover, a constitutionally-adequate penalty-phase defense

Among the items in the governments December 15 production were the contents of
Ibragim Todashevs hard drive. This is important to the defense not because of any
putative connection to the Waltham murders but because Todashev and Tamerlan
Tsarnaev exchanged electronic messages containing links to and attachments of what the
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will require a broader and more holistic presentation concerning the defendant and his
background.
The governments parsimonious approach to its automatic discovery obligations
has indeed made discovery more protracted by requiring the defense to make repeated
follow-up requests over time as it reviews the steady incoming flow of materials and
conducts its own investigation. But the governments self-serving assertion that much of
the voluminous evidence it reluctantly and belatedly produced is defense-requested
(apparently to imply lack of relevance) does not make it so, nor does it relieve the
defense of its constitutional obligation to review all of the material thoroughly, which
takes time.
Stephen Silva
The defense explained in its Second Motion to Continue that witness-related
information contained in the massive December 17-18 government disclosures requires
investigative follow-up. As but one example, the defense cited Stephen Silva, who has
entered an agreement to cooperate with the government by testifying against Mr.
Tsarnaev in exchange for consideration at sentencing for separate federal crimes that he
has admitted committing. In its Opposition, the government responded: The full extent
of Silvas likely testimony was disclosed to the defense in great detail virtually as soon as
Silva was arrested. The only newly-disclosed Silva materials are more recent statements

government would surely characterize as radical materials. The contents of Todashevs


computer, which will take time to analyze, likely will help to fill important gaps in the
story about radicalization of the Tsarnaev brothers and the origins computer files to
which the government and its experts attribute great significance.
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he made that largely elaborate on his earlier statements. Opp. at 3-4. The governments
characterization is incorrect.
The government previously produced recordings of conversations between Silva,
an informant, and an undercover law enforcement agent. The defense has made efforts to
investigate some of the factual matters contained therein with limited leads to do so.
The December 17 production included, in addition to traditional impeachment materials
(e.g., Silvas proffer letter): multiple previously undisclosed FBI 302s documenting
interviews of Silva that reveal new aspects of his likely testimony; previously undisclosed
FBI 302s documenting interviews with multiple other witnesses concerning Silva and the
subject matter of his likely testimony; and hours of recorded jail calls by Silva.
The previously undisclosed 302s provide names of at least six witnesses who can
assist the defense to probe the veracity of an alleged connection between a gun in Silvas
possession and the one ultimately recovered at the Watertown shootout. These witnesses
also have impeachment information about other cooperating witnesses, including their
drug use, psychiatric and cognitive impairments, and biases and motives to lie.
In short, these materials provide important leads for investigation concerning the
substance of Silvas prospective testimony as well as bases for impeachment. Perhaps
most importantly, the new materials identify a putative eyewitness to relevant interactions
between Silva and the defendant who is presently believed to be located outside the
United States. Simply put, the December 17 disclosures put the defense in a position to
conduct in-depth investigation that was not possible before, including investigation of the

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background, reputation, and criminal conduct of witnesses who will figure prominently in
the governments case.
Witness List.
As noted above, the governments claim that the defense has refused to enter
stipulations is false. The governments related claim that it offered to remove [law
enforcement witnesses] from the list if Tsarnaev agreed to stipulations or some other
accommodation that would obviate the need for those witnesses, Opp. at 2, is also
misleading. The government has never actually quantified or identified witnesses among
the nearly 600 law enforcement personnel listed who were mere evidence handlers or
whom it might otherwise remove in the wake of yet-to-be-proposed stipulations. This
leaves the defense in precisely the predicament we identified in our motion, with no way
to separate the wheat from the chaff as we try to focus our trial preparation efforts.
Exhibit List
Ordinarily, when the government produces a witness list to the defense it
simultaneously provides pre-marked copies of the exhibits themselves (and/or a
straightforward means to identify exhibits that are physical objects by photograph, etc.).
Had the government done so here, there would be no ambiguity and no need to engage in
back-and-forth about whether the governments list permits the defense to identify
exhibits accurately with a reasonable expenditure of time and effort. The governments
continuing unwillingness or inability to provide comprehensive exhibit information
through the present time is telling. The governments offer to help the defense
identify any item on the list that they could not identify on their own, Opp. at 3, was
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as the defense noted at the time an empty gesture because the defense needs that
information for nearly all of the governments listed exhibits.
With regard to exhibit items such as photographs and documents, the government
states (Opp. at 2):
When the government produced these items in discovery, it either produced
them with these same original file names, or it produced them with a new
file name consisting of a Bates number range and provided a searchable
index that matched the new file name to the original file name.
For an enormous number of exhibits, this is simply not true. For example, many such
items are listed without any digital file name that might facilitate location in the
previously-produced discovery. A few examples include #791: 3D model of Boylston
Street; # 793: Time Line video compilation video; #876: Daytime surveillance
image of Koch Building courtyard; #1075: Notebook with writing; and many others
with similarly oblique names. As for photographic exhibits listed by computer file name
(*.jpg,), contrary to the governments assertion, many of those computer file names are
not listed in production indices that can be cross-linked to the Bates-numbered PDF
images produced by the government in discovery.
The governments further claims that its proposed exhibits with Q numbers are
readily identifiable and can be easily associated with photographs, Opp. at 2, are
incorrect and beg the question of why the government did not do so itself, instead leaving
the defense to attempt to cross-reference multiple lists and indices in an attempt to make
a match. The vaunted report by FBI expert Ed Knapp, an excerpt of which is attached
hereto under seal as Exhibit A, provides scarcely more information than the oblique
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descriptions included in the governments exhibit list.4 The defense still has been unable
to understand the significance of or locate photographs of many Q items, two weeks
after receipt of this list.
With regard to files extracted from computers and other electronic devices, the
government states (Opp. at 2-3):
[T]he governments exhibit list identifies each computer and cell phone file
by its file name. With limited exception, the defense has copies of all of the
computers and cell phones in question and thus can examine the items
simply by accessing the device in question and looking at the named file.
The second sentence of this statement contains a remarkable admission embedded in the
with limited exception language: apparently, the government has not yet even
produced to the defense all of the seized digital devices from which its proposed digital
file exhibits were extracted. The remainder of the sentence is simply wrong. Because the
government has not identified the source device for each of its listed digital file exhibits,
the defense must search every device produced in discovery for the named file. As noted
in the motion, many of these files appear on multiple devices and it is critical to
understand which copy (associated with a particular device and/or person at a particular
time) the government intends to introduce. In addition, as also noted in the motion, the
governments list contains nearly 3 dozen spreadsheets and other files of the
governments creation that the defense has never seen.

In many cases the Knapp list references other identification numbers that either require
further cross-reference searches through terabytes of discovery or that have no meaning
to the defense.
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Even if the government finally does produce actual exhibits (and, in addition,
identifies or produces the source device for each of the digital file exhibits, as
applicable) by later today, the defense has now lost two weeks of informed preparation
time with the start of trial now just one week away.
Expert Witness Discovery
The governments assertion that the recently produced information was provided
to illustrate for the defense the governments theory of admissibility, Opp. at 4, is
disingenuous. It is significant that the recent government disclosures of additional
materials and information regarding expert forensic testimony were made in response to
(often repeated) defense requests for required Rule 16(a)(1)(E)-(G) materials. As just
one example, the defense by letter dated November 24, 2014 specifically identified Rule
16 materials underlying proposed tape and polymer matching testimony that the defense
did not have and would require in advance of the Courts deadline for Daubert motions.
The defendant was forced to delay the filing of a motion in limine regarding tape and
polymer matches because the government could not or would not timely respond. When
the government finally responded on December 15, 2014, its responses tracked (albeit
incompletely) the defendants requests. Given these circumstances, the governments
suggestion that the belated disclosures were simply voluntary or illustrative, and/or
were of the defenses own making strains credulity.
In any event, even a cursory review of the substance of the governments recent
disclosures belies the notion that they are illustrative rather than substantive. In
response to the defendants Daubert motion in limine regarding electronics testing, the
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government revealed on December 15, 2014 that its testifying witness was conducting
new testing that was apparently ordered to correct evidentiary flaws revealed by the
defendants discovery requests dating back to October 9, 2014.5 Perhaps the most
decisively refutation ofthe governments suggestion that the new materials are only
illustrative is its addition, three weeks before trial is set to begin, of an entirely new
expert (with two Ph.Ds and a medical degree) to offer completely new opinion testimony
in the highly technical area of DNA statistics. See Governments Response To
Defendants Motion To Exclude Certain Conclusions Regarding DNA Evidence and
Motion to Supplement Expert Disclosures, DE__ (Motion to Seal [DE 728] Pending).
The governments suggestion that new testing (in the case of electronic engineering
testimony) and an entirely new expert that requires leave of the Court (in the case of
DNA opinion) is illustrative rather than substantive is specious.
Conclusion
For the foregoing reasons, as well as those set forth in the underlying Second
Motion to Continue Trial Date and accompanying submissions (i.e., the state of the
international mitigation investigation, the atmosphere of fear that slows domestic
mitigation investigation, the likely timing of jury deliberations on the current schedule,
and unabated prejudicial publicity and leaks), the Court should grant a continuance.

Notwithstanding the governments delay, which now spans two months, between
request and its continuing responses, the governments most recent new disclosure is still
incomplete because it is little more than a summary of the steps taken by the analyst. It
does not contain documentation of the actual testing underlying his opinion.
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Respectfully submitted,
DZHOKHAR TSARNAEV
by his attorneys
/s/ William W. Fick
Judy Clarke, Esq. (CA Bar # 76071)
CLARKE & RICE, APC
1010 Second Avenue, Suite 1800
San Diego, CA 92101
(619) 308-8484
JUDYCLARKE@JCSRLAW.NET
David I. Bruck, Esq.
220 Sydney Lewis Hall
Lexington, VA 24450
(540) 460-8188
BRUCKD@WLU.EDU
Miriam Conrad, Esq. (BBO # 550223)
Timothy Watkins, Esq. (BBO # 567992)
William Fick, Esq. (BBO # 650562)
FEDERAL PUBLIC DEFENDER OFFICE
51 Sleeper Street, 5th Floor
(617) 223-8061
MIRIAM_CONRAD@FD.ORG
TIMOTHY_WATKINS@FD.ORG
WILLIAM_FICK@FD.ORG
Certificate of Service
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing
(NEF) and paper copies will be sent to those indicated as non-registered participants on
December 29, 2014.
/s/ William W. Fick

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